Yesterday I was commenting on Jim Prentices proposed reform to the First Nations treaty negotiation process. Specifically, he is considering giving the Indian Claims Commission (ICC) the authority to make legal rulings and thus settle agreements.

While the details have not all been made clear, it would appear that Prentice’s reform seeks to shift the ICC’s role from that of mediator – where any agreement is determined by the parties themselves rather than being imposed by a third party – to arbitrator – where agreements are imposed by the arbitrator and to which the disagreeing parties agree, in advance, to be bound.

The problem with arbitration is that it may not solve the underlying problems plaguing the process. For example, Prentice sites two shortcomings of the current process – it is too slow, and not perceived to be legitimate.

Arbitration, may increase the speed. However, it may not be any more legitimate, and could actually be less so…

For example, on what basis would arbitrated decisions be made? What would be the guiding principles the arbitrators would reference? Who would establish these principles? Will these be negotiated? If so, by who? All First Nations and the government? Or a representative sub-group? Ultimately, if the principles that guide the arbitration are not perceived by all parties to be fair and legitimate, or if the arbitrators themselves lack the respect of the opposing parties then the process may actually be seen as less legitimate then the current negotiations.

Indeed, this is even more important given the nature of the negotiations. Because the parties are negotiating over sovereignty this process is deeply political. Will Canadians, or First Nation, feel comfortable handing such a sensitive decision over to a third party who has no track record in making these decisions and so, to which the outcomes will be unpredictable?

Another problem with arbitration is that it does little to resolve any relationship/trust/cooperation problems between the parties. By bringing in a third party to resolve the dispute First Nations and the government will establish a problematic precedent: When we don’t agree, bring someone else in to arbitrate.

In many respects, treaty settlements are not the end of the process but the beginning. Treaties form the basis for a new relationships between First Nations and the government. Regardless of the treaty’s specifics, the parties are going to have to learn to work together more effectively going forward. To assume, that once the settlement is out of the way, all the actors will know their jurisdictions and powers and so will get along, is probably a false one. Just ask anyone whose ever worked on Fed-Prov relations…

If Canadians are serious about creating a new relationship with First Nations it feels odd that the first step in establishing this new relationship would be to put a third party between the two groups. Negotiating can be fair, legitimate and (relatively) speedy. The question isn’t about arbitration, it is about whether this (or any) government wants to make it a priority.